Mon May 10, 2010 at 15:50

If you are looking to defeat a Supreme Court nominee, there are two basic paths.

The first is to quickly assemble a coherent, easily understandable, negative narrative around the nominee that is repeated by numerous commentators in both parties. This happened to Harriet Miers, when both Democrats and Republicans attacked her as a "crony" nominee. Simple, straightforward, bi-partisan. There are only about 48 hours before the big splash about the nomination dies down, and so if you fail to get this narrative to stick quickly, thus putting the administration on the defensive, then you only have one more way of defeating the nominee...

...which is to find some sort of shocking quote or revelation about the nominee that restarts the news cycle on the nomination, and puts the administration on the defensive. While this may yet happen, it now seems that this Hail Mary approach (which the right-wing tried against Sotomayor with the "wise Latina" line) is the only way that Kagan's nomination will be defeated. This is because, in the opening salvo, opposition to Kagan is scattered and disorganized, and no coherent, negative narrative is forming against her.

A strategy of throwing a bunch of random bits of oppo against the wall, without any coordinated action, and hoping that something miraculously sticks, simply isn't going to work. The news cycle on Kagan will wind down in about 24 hours, or less, and these attacks will just disappear into the ether. And yet, this sort of random, disorganized attack is exactly what is happening. Here is a quick sample:

Republicans in the Senate Probably the most effective line of attack on Kagan would have been her lack of courtroom experience. Indeed, this is the most common argument that is popping up, but it is still a far cry from becoming a clear narrative. John Kyl criticized Kagan for this, but both Mitch McConnell and John Cornyn did not emphasize this in their statements on Kagan. McConnell praised Kagan for having a first-rate intellect, while Cornyn targeted Kagan for not being "ordinary" enough.

The RNC In an attack that will please their base but have no impact on Kagan among the broader public, the RNC is emphasizing that Kagan praised civil rights pioneer and former Supreme Court Justice Thurgood Marshall.

The theocratic right Right-wing Christian groups are attacking Kagan for being pro-homosexual and anti-military. This is an entirely different attack than the one coming from the Republican Party and Republican Senators, and it is also boilerplate attacks they make against all Democrats.

Right-wing media Finally, right wing media is focusing on an entirely different line of attack, and a boilerplate one at that. For example, Rush Limbaugh calls Kagan an "academic elitist radical," because I guess he just wanted to phone it in today.

This lack of coherency isn't going to work. You can't win a news cycle like this just by throwing a bunch of random attacks against the wall. This goes for the progressive opponents of Kagan, too. If they wanted to stop this nomination in its tracks, they needed to get on board with one of these lines of attacks. While there have been some right-wing grumblings about progressive concerns such as Kagan's diversity record and ties to Goldman Sachs, really the best opportunity was probably her lack of experience and a repeat of the Miers "crony" argument.

At this point, it is clear that isn't going to happen. There seem to be a lot of concerns about Kagan, but pretty much none of them are receiving any significant media play because her opponents can't seem to agree on what to say. As such, she is pretty much sailing through the news cycle, coming off as an smart, qualified, trailblazing, non-political pick. That is exactly what an administration wants the news cycle to be when they make a Supreme Court Justice nomination, and that seems to be pretty much what the Obama administration is getting with Kagan. This "fight" is already almost over.

I believe that if you are a rational Republican politician you may look at this situation with a two pronged approach. First you want to get the most conservative person possible on the bench. The focus there is rejecting Kagan and getting Obama to nominate some more moderate. I have no doubt that they would like this to happen, but they know it is difficult and unlikely (and perhaps to some Kagan isn't even the worst they could get).

Secondly and more importantly, I believe, is that they want to draw out the nomination process as long as possible. They likely know that ultimately Obama will get Kagan in, but the more time Dems spend with that (and the more political capital) the less they have for immigration reform, climate change legislation, and all the other Democratic priorities.

To accomplish the first you have to have a really good argument (like against Miers or Bork), but to accomplish the second you don't really need that much, just enough for your opposition to seem plausible. With today's media I don't doubt that they will be able to achieve that.

No other way to say that. Her record - pathetically thin as it is - gives very little hope for any who hoped to beat back creeping corporatism or executive over-reach.

So when are we going to recognize Obama for what he is? a Bush lite?

But Kagan had friends in high places, including one failued economist by the name of Summers (who was supposed to be such a genius that every recommendation he made was a failure).

Apparently, kagan's performance as dean was less than universally acclaimed, too, but she has the right connections, the right east coast ivy league background, the right last name and the right religion apparently (protestants or west coasters or southerners need not apply).

When will people wake up and realize that like all of Obama's other appointments Kagan is a true apparatchnick?

Right now, I am pinning my hopes on the right finding something wrong with her. Alas, so far the wingnuts rather like what they see. That should probably tell us something.

Any chance the left can get together to derail this disasterous appointment?

Is it anti-semitic to mention that kagan is Jewish? can I mention that scalia is catholic? that the SC is not representative of the country at all? is that forbidden territory now?

that's great - the new McCarthism forbids mention that some people are Jewish, and that the SC is now all east coast, all ivy league, all the time. Because, heaven forbid, that too might be anti-semitic.

We - as in "other" jewish people who don't live in the east coast and have no cronies in U O chicago - are sick and tired of your kind of witch hunts. That's one of the things that's burning down the left. Next you'll tell me that israel is the "only democracy in the ME" and that Ross is a neutral, impartial advisor when it comes to anything to do with likudland? and to say otherwise is anti-semitic.

BTW, there's so much totally wrong and second rate about Kagan that were I a member of the east coast, ivy-league wing of the tribe, I'm not sure I would be so proud of her being a member. Maybe we can turn her into an honorary mormon or something?

I've never had a Beef with Shergard. I read MJ Rosenberg and Reza Aslan daily. I'm not one of those AIPAC neocon hawks.

Where I come from here is the WASP privelege thinking that they're a persecuted minority when For the last hundred years, All the Presidents, House Speakers, Senate Majority Leaders were White Anglo-Saxon Protestants (or at least), and just because there's a little more diversity from groups that have not been historically represented in such high positions, you purvey this "Woe is us Protestants " bullshit. Let's review what you said:

Apparently, kagan's performance as dean was less than universally acclaimed, too, but she has the right connections, the right east coast ivy league background, the right last name and the right religion apparently (protestants or west coasters or southerners need not apply).

Note: Bold mine.

I didn't call you Anti-Semitic merely for mentioning Elena Kagan's religion. I called you anti-semitic for implying that she got to where she was because of it. I don't call people anti-semites lightly because of how groups like the Anti-Defamation League abuse it, but you clearly seem to fit the case.

that since I am Jewish myself, I just may know something about those 'connections" of which I speak? you really think that in the thin air spanning new york to washington to boston, connections don't count? just exactly how do you think certain people mysteriously pop up as journalists/pundits/op ed writers for the NYT or the WP when there's so much talent around? you may not like it, but there are many professions in this world where connections ARE everything and perhaps always were. Journalism is one. law is another. Finance is still another. Sure you can be a journalist ifrompodank mississipi based on merit alone. But try to get a gig in influencial new york paper

Ass an aside - there are even professions where being gay is an advantage For example being a male dancer/singer on Broadway. Why that is so should be obvious (if not, I'll be happy to explain). Now, just because there's still plenty of homophobia around, does it mean you can't call a spade a spade?

Some people may not want to acknowledge the existence of "country clubs", but that doesn't mean they don't exist. You had absolutely nothing to say, I bet, when accusations of "country club appointments" were flying around WASPs. it is interesting, however, to note that for a huge swash of white-ish protestant-types in the heartland, the word WASP sounded (and still does) like a sick joke, given their own circumstances.

When a group of people reaches 'elite' status, there's absolutely no reason not to point that out. Even if this group now happens to be jewish. Your double standards are glaring because I bet you would have nothing to say if the issue was LACK of privilege rather than its presence..

Lastly, I'll appeal to fact: Kagan was elevated to Dean of harvard law school by Summers, after a mere 1 year teaching there, and despite a very thin resume of publications (though she was, by all accounts, a good teacher, which is not enough for a dean). The lack of legal/scholarly track record was the primary reason she was turned down at Austin law school, after her stint in the Univ of Chicago.

Also, I recommend you read Brooks' article at today's NYTs - sometimes (far from always) he really gets it - he calls Kagan a perfect "organization kid". That has everything to do with her personality (an ambitious "perfect little student" type with which I'm quite familiar) and nothing to do with being jewish. But the later comes in handy when comfort zones and opportunities to mingle with the "influencials" are added in.

And if the statement you quote from me is an indication of incipient (or profusive) anti-semitism, that's really bad news, because then there's almost no one in the country who isn't so, including many of 2-3% who happen to trace themselves jewish.

It is time to stop patrolling the mean blog streets looking to smite hidden anti-semites everywhere. And if we agree that jewish people are the "New WASP" as in the "East coast, Ivy league patrician class' (which is what I actually said), you would do well to expect some resentment of such privilege. Not only from people who happen not to frequent a synagogue, but from those who happen to live, for example, in other regions of the country.

I am not asking for an apology, BTW. Don't need and don't expect one. But I do like clarity - even in accusations - and think you should try to get some.

Obama obviously pruned Kagan for this nomination a year ago.
(4.00 / 2)

And Kagan it is.

The majority Democrats in the Senate are not going to reject an Obama nominee under any but the most extreme circumstances, and they are not present. Lack of judicial experience may be an asset in a climate where a minority can determine the result.

Many liberal Democrats would likely have preferred an openly liberal judge like Wood, but that was not to be. Wood may have created a fight on the Senate floor, a filibuster perhaps, which frankly I would have liked to see.

as Clarence Thomas in the end. She is, by all respected accounts, a light weight. I strongly doubt that a loyal lackey like she seems to have been - a "don't rock the boat" type has a progressive bone in her body. To me it makes little difference whether what clothing the uncle Tom's of this world wear because in the end it's them who refuse to see the king is naked.

supports entrenched power. The fact that she was OK with diversity at the lower levels of Harvard (students, lecturers), but not at the top suggests this. 23 white men, 5 white women, 1 Asian-American for tenure and tenure-track positions.

The obvious conclusion about Kagan is that she's not an ideologue.
(4.00 / 3)

No one who has strong progressive convictions can fly under the radar for decades. In that sense she's like Obama himself. I disagree with those who say she is a second-rate candidate. She clerked for Marshall, which is huge. Her other experience is mainly administrative. Progressives best approach to this appointment is to keep pushing from the left, not to derail the nomination--which is probably impossible--but to get an on-the-record liberal like Diane Wood next time around.

and that's the reason they'll NEVER get someone like Woods, just like they didn't get Dawn Johnson. Mealy weaselness is a progressive's occupational hazzard. for obvious reasons - it is in the progressive's nature to do kumbaya, to seek rapproachment, to "get along", to kiss and make up. That's why we have a second rate health insurance reform which has not a snow ball's chance in hell of being improved upon. That's why all the excuse-making about Obama.

I do agree with you that it is very hard, if not impossible, to hide - for decades - progressive convictions. At this point we might as well assume Kagan has none,. What she does have is great respect for power and she has an excellent track-record in cozying up to it. The idea that she can be a "consensu builder' on the SC is nonsense. Her personality type will ensure she'll go with the strongest, once she sensed which way the wind blows. At best she'll be kennedy-like. And that will move the court way to the right.

As for clerking for marshall, that does not a SC nominee make. She does have a track record of playing her cards right, and she probably is, as most with her background are, an establishment democrat. Her resume is still however paper-thin. She has written markedly few papers and scholarly articles. Never been a judge and hardly did much courtroom work in front of judges. Her performance in front of the SC as solicitor general received mediocre grades. I may have been unfair calling her second-rate. But she certainly is nothing close to first rate. Being smart and a loyal lackey to clinton and obama does not a good nominee make, and Obama, I'm afraid, showed his true colors here - yet again. No stomach for a fight, even where it matters most.